The High Court decision in RJ Davidson Family Trust v Marlborough District Council (Cull J)[1] is important as the first decision from the superior courts to apply the King Salmon approach in a resource consent context.[2] The decision (while subject to further appeal) is currently binding legal authority on the Environment Court and local authorities.
Does King Salmon apply to a resource consent application?
To answer this question the High Court noted that the Supreme Court decision in King Salmon emphasized that:[3]
The RMA envisages the formulation and promulgation of a cascade of planning documents, each intended, ultimately, to give effect to s5, and to pt2 more generally. These documents form an integral part of the legislative framework of the RMA and give substance to its purpose by identifying objectives, policies, methods and rules with increasing particularlity both as to substantive content and locality.
It also noted that the Supreme Court decision in King Salmon “addressed the way in which a decision-maker” must take into account the planning documents” and stated:[4]
Section 5 is not intended to be an operative provision, in the sense that it is not a section under which particular planning decisions are made, rather, it sets out the RMA’s overall objective. Reflecting the open textured nature of pt2, Parliament has provided for a hierarchy of documents for purpose of which is to flesh out the principles in s5 and the remainder of pt2 in a manner that is increasingly detailed both as to content and location. It is these documents that provide the basis for decision-making, even though pt2 remains relevant. It does not follow from the statutory scheme that because pt2 is open textured, all or some of the planning documents that sit under it must be interpreted as being open textured.
By arriving at this conclusion the Supreme Court rejected an “overall judgment” approach. Based on this reasoning, the High Court in Davidson found that:
… King Salmon does apply to s104(1) because the relevant provisions of the planning documents … have already given substance to the principles in pt2. Where, however, as the Supreme Court held, there has been invalidity, incomplete coverage or uncertainty of meaning within the planning documents, resort to pt2 should then occur.
Implications, balancing and bottom lines
The implication of the decision in Davidson is that the King Salmon approach will be the starting point for achieving sustainable management (the utlimate question), unless one of the three exceptions applies. It is for note that a similar approach to applying King Salmon has also been adopted in other recent Environment Court decisions in the context of both declarations regarding resource consents and plan change appeals.[5]
The debate sparked by both King Salmon and more recently by Davidson firmly returns resource management law to the philosophical dichotomy that prevailed in the mid-1990s. This was aptly summarised by David Williams QC in the following terms:[6]
The supporters of balancing consider that s5 is concerned with balancing socio-economic aspirations with environmental outcomes. The opposing view is that the overriding purpose of the Act exposed in s5 is to secure a particular environmental outcome – sustainable management. The debate partially focuses upon whether the word “while” in s5(2) invites the antecedent matters to be balanced against those which follow; or whether the matters in subs (2)(b) and (c) must be secured, whatever may be the socio-economic needs being met or the general public benefits being achieved through the proposed activities. In short, the latter view holds that s5(2)(a), (b) and (c) amount to non‑negotiable environmental bottom lines which must be met in all cases.
Previously, the Resource Management Law Association devoted its 3rd Annual Conference in 1995 to exploring these themes, with papers being presented by (inter alia) Professor Sir Malcolm Grant of University College London, and Kerry Grundy of the University of Otago. For example, when answering the question as to whether sustainable management in s5 of the RMA provides a sustainable ethic to guide the implementation of the statute Grant considered that:[7]
The true position seems to me to be that it is only at an abstract level that section 5 can be said to embody a single “ethic”, and that it in fact captures a variety of different environmental values which are not necessarily in accord with each other. This means that, whilst discretionary power under the Act is not to be exercised in a vacuum, section 5 does not provide anything like a clear framework for decisions, and that trade-offs are indeed necessary when it comes to designing and implementing the necessary management strategies.
While Grundy found a strong philosophical argument for a moral or ethical basis for sustainable management, he found a stark contrast in practice arising from the almost exclusive “effects-based” emphasis placed on addressing externalities. This observation led Grundy to conclude that:[8]
… by effectively denying the relevance of intergenerational equity and ecological sustainability in its interpretation of sustainable management, the neo-liberal approach threatens to emasculate the very concept of sustainability and render it devoid of any useful meaning as an intellectual construct, system of ethics, or as an object of public policy.
Subsequently, Professor David Grinlinton of the Universities of Auckland and Windsor (and the inaugural general editor of this journal) drew attention to the shift from “balancing” competing considerations to making a more “neutral”, “overall broad judgment”, in light of the Environment Court decision in North Shore City Council v Auckland Regional Council.[9]
When read together, these commentaries strongly support the hierarchical approach to implementation of the RMA via policy statement and plan provisions that inform resource consent decision-making in a real and directive way. They also connect closely with the Parliamentary debates regarding the meaning of s5 of the RMA. For example, Hon Simon Upton observed during the third reading debate on the bill that:[10]
The law should restrain the intentions of private land users only for clear reasons and through the use of tightly targeted controls that have minimum side effects … The Bill provides us with a framework to establish objectives by a physical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. [emphasis added]
Whither King Salmon?
Most recently, Martin Williams considered that we should not “displace over 20 years of case law” and suggested that we should go back to basics by applying legal method.[11] While this view has much force, a wider contextual reading that takes account of both the full range of Parliamentary materials regarding the legislative history of pt2 of the RMA and academic commentary pulls strongly against an “overall judgment” approach. It is also relevant to note, that despite its importance as the first critical decision regarding the meaning of s5 of the RMA, the decision in North Shore City Council v Auckland Regional Council does not contain any analysis of the relevant Parliamentary materials. The same position applies in relation to the subsequent Court of Appeal decision in Watercare Services Ltd v Minhinnick which adopted a substantially similar approach to North Shore, but again without any reference to the relevant Parliamentary materials or academic or other commentary.[12]
This leaves us with the question as to whether the previous case law was rightly decided, and whether pt2 of the RMA ought to be given effect to in a directive way that implements sustainable management via policy statement and plan provisions “with increasing particularlity both as to substantive content and locality”. Such an approach links closely with the purpose of these statutory planning documents,[13] and the legislative drive for simplifying and streamlining RMA implementation that has been evident since (at least) 2009.
Similarly, when considering the ratio of decisions it is possinle to adopt either a strict or liberal approach. For example, taking a leading case from another area of law illustrates this point neatly. The House of Lords decision in Woolwich Equitable Building Society v IRC[14] regarding unjust enrichment as a public remedy could strictly be be interpreted as merely being authority for the restitution of money paid in response to an unlawful tax demand,[15] or more widely as authority for the proposition that any payment made to a person or body that is acting outside their statutory authority is subject to restitution.[16] Here it is for note that King Salmon pertained to private plan change applications that were necessary precursors to enabling resource consent decision-making, leading toward a wider view.
Finally, while Davidson applies a different approach to resource consent decision-making, it has not entirely displaced North Shore in cases where one or other of the three King Salmon exceptions applies.
Dr Trevor Daya-Winterbottom
Faculty of Law
University of Waikato
[1] [2017] NZHC 52.
[2] Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd [2014] NZSC 38.
[3] [2017] NZHC 52 at [71]; [2014] NZSC 38 at [30].
[4] [2017] NZHC 52 at [74]; [2014] NZSC 38 at [151].
[5] Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017] NZEnvC 37; Federated Farmers v Mackenzie District Council [2017] NZEnvC 53.
[6] DAR Williams, Environmental and Resource Management Law (2nd edn), 75.
[7] Malcolm Grant “Sustainable management: A sustainable ethic?”, in Trevor Daya-Winterbottom (ed) Frontiers of Resource Management Law (2012) 47.
[8] Kerry J Grundy “Sustainable management: A sustainable ethic?”, RMLA 3rd Annual Conference 1995 at 9.
[9] David Grinlinton “Contemporary Environmental Law in New Zealand” in Klaus Bosselmann and David Grinlinton (eds) Environmental Law for a Sustainable Society (2002) 26-27; [1997] NZRMA 59 at 94.
[10] NZPD February 1991.
[11] Martin Williams “Part 2 of the RMA – “engine room” or backseat driver?” April RMJ 2017 25 at 26
[12] [1998] NZRMA 113 at 124-125.
[13] RMA, s59, s63, and s72.
[14] [1993] AC 70.
[15] Paul Craig Administrative Law (7th edn 2012) 945.
[16] Law Commission of England & Wales, Report No 227.